United States, Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California (Respondent) and National Federation of Federal Employees, Local 2023, AFL-CIO (Charging Party) (Authority decision, March 1, 2005)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case under 5 U.S.C. § 7118. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). No remand remains pending in this order.

Plain-English summary

Los Padres National Forest held three mediation sessions about employees' formal equal employment opportunity complaints without notifying their union or allowing it to attend. An administrative law judge found that each session was a formal discussion covered by the union representation right. The Authority upheld the unfair labor practice findings and ordered the Forest Service to give the union notice and an opportunity to attend such discussions, plus post a notice at Los Padres facilities. It rejected the agency's arguments that neutral mediators, employee confidentiality, or the agency's complaint processing rules displaced the union's statutory right on this record. Chairman Cabaniss dissented because he did not regard the sessions as formal discussions.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114(a)(2)(A), 7116(a)(1), 7116(a)(8), and 7118.
• Outcome: Unfair labor practice findings upheld; notice and posting ordered.
• Key point: Formal mediation of an employee's EEO complaint required advance notice and an opportunity for the union to attend.

Full text (FLRA public release)

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p644 ]

60 FLRA No. 128

UNITED STATES

DEPARTMENT OF AGRICULTURE

FOREST SERVICE

LOS PADRES NATIONAL FOREST

GOLETA, CALIFORNIA

(Respondent)

and

NATIONAL FEDERATION

OF FEDERAL EMPLOYEES

LOCAL 2023, AFL-CIO

(Charging Party)

SF-CA-02-0133

SF-CA-02-0400

SF-CA-02-0525

_____

DECISION AND ORDER

March 1, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions.

The complaints allege that the Respondent violated § 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by holding three formal discussions with bargaining unit employees regarding Equal Employment Opportunity (EEO) complaints without affording the Union notice and an opportunity to be represented as required by § 7114(a)(2)(A) of the Statute. The Judge decided the case on a stipulated record and, applying Authority precedent, concluded that the Respondent violated the Statute as alleged.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order to the extent consistent with this decision.

II. Background

Case No. SF-CA-02-0133 involves the EEO complaints of Patrick Crespin. As relevant here, one of the complaints was mailed to the Department of Agriculture (DOA) on September 13, 2001, and was received by the DOA on September 20, 2001. On September 26, 2001, a mediation/settlement meeting was held to resolve Crespin's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

Case No. SF-CA-02-0400 involves the EEO complaints of Cyndie Genzmer. On October 4, 2001, Genzmer mailed a formal complaint to the DOA. On January 6, 2002, she mailed another formal complaint concerning a different matter to the DOA. On March 8, 2002, a mediation/settlement meeting was held to resolve the Genzmer's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

Case No. SF-CA-02-0525 involves the EEO complaints of Jannet Benton, one of which was filed in accordance with the terms of a court-approved settlement agreement and order in a class action suit against DOA. A mediation/settlement meeting was held on April 8, 2002, to resolve Benton's EEO complaints. The Union was not provided advance notice or an opportunity to attend the mediation session.

The General Counsel issued complaints alleging that the three mediation sessions were formal discussions and that since the Respondent had not given notice to the Union, the Respondent violated § 7116(a)(1) and (8) of the Statute.

III. Judge's Decision

Applying the criteria established by Authority precedent, the Judge concluded that all three of the mediation sessions constituted "formal discussions" within the meaning of § 7114(a)(2)(A) of the Statute.

The Judge found that it was undisputed that the mediation sessions at issue constituted discussions. Judge's Decision at 16. He also found that the mediation sessions were "formal" since the circumstances surrounding the mediation sessions in this case were sufficiently similar to the facts in United States Dep't of the Air Force, Luke Air Force Base, Ariz., 58 FLRA 528 (2003) (Luke II) (Member Armendariz concurring and Chairman Cabaniss dissenting); United States Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover) (Chairman Cabaniss dissenting), affirmed sub nom Dover Air [ v60 p645 ] Force Base v. FLRA, 316 F.3d 280 (D.C. Cir. 2003) (Dover AFB v. FLRA); and Luke Air Force Base, Ariz., 54 FLRA 716 (1998) (Luke I), rev'd 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000). Specifically, based on the totality of the circumstances, the Judge found that Crespin and Genzmer's mediation sessions were formal in light of the following facts: management was represented by Forest Service officials with full authority to settle the EEO complaints; the sessions were held at locations outside of the employees' work area and lasted for several hours; the sessions were scheduled two weeks or more in advance; and the pre-established subject of the meetings was to discuss and resolve the EEO complaints.

Consistent with the Authority precedent cited above, the Judge rejected the Respondent's claims that Crespin's mediation session was not formal since it was conducted by a mediator and was voluntary. Id. at 18 (citing Luke II, 58 FLRA at 533; Dover, 57 FLRA at 307). The Judge also rejected the Respondent's claim that the fact that the manager participating in the mediation was not in Crespin's chain of command nullified the formality of the meeting. Id. (citing Dover, 57 FLRA at 307). With respect to Genzmer's mediation session, the Judge noted that although attendance was voluntary and notes from the meeting were destroyed, such factors did not outweigh the other factors indicating formality. Id. at 21 n.17.

The Judge also rejected the Respondent's argument that the mediation sessions involving Crespin and Genzmer were not formal within the meaning of § 7114(a)(2)(A) because the employees' formal EEO complaints had not been accepted by the DOA prior to the occurrence of the mediation sessions. Id. As relevant here, the Judge found that under the EEOC's regulations, an aggrieved person must engage in a pre-complaint process that consists of consulting with an EEO counselor as a prerequisite to filing a complaint of discrimination. Id. at 19 (citing 29 C.F.R. § 1614.105). Subsequently, at the completion of counseling, the counselor must provide the aggrieved with a written notice of the aggrieved's right to file a discrimination complaint. Id. (citing 29 C.F.R. § 1614.105(d)). Upon receipt of that notice, the aggrieved has the right to pursue the claim further "through the formal complaint procedure." Id. (citing EEO MD-110, Chapter 2, § VI.D.1). The aggrieved must file a complaint with the agency that allegedly discriminated against him or her within 15 days of receipt of the written notice of right to file. Id. (citing 29 C.F.R. § 1614.106). If the complaint is mailed, then the date of filing is the postmark date, not the date the agency received the complaint. Id. at 19-20 n.15 (citing EEO MD-110, Ch. 5, § 1). Within a reasonable time after a complaint is filed, the agency must notify the complainant whether and to what extent it is accepting or dismissing the complaint. Id. at 20.

Based on the EEO complaint process described above, the Judge concluded that "the acceptance of an EEO complaint follows the filing of a formal complaint and status as a formal EEO complaint is not dependent on the agency's acceptance." Id. at 20. Also, the Judge found that Crespin's formal complaint was filed as of September 13, 2001, the date that it was mailed to the DOA, which was prior to the mediation session on September 26, 2001. Similarly, with respect to Genzmer, the Judge found that her formal complaints were mailed to the DOA on October 4, 2001 and January 6, 2002, and therefore filed on these dates prior to the March 8, 2002 mediation session.

With respect to the mediation session involving Benton, the Judge found that this meeting was also sufficiently similar to the circumstances in Luke II, Dover, and Luke I, and constituted a formal discussion in light of the following factors: management was represented by the Lake Tahoe Basin Management Unit Supervisor with full authority to settle Genzmer's EEO complaints; the session was held at a location outside of the employee's work area and lasted for 8 hours; the session was scheduled almost two weeks in advance; and the pre-established subject of the meeting was to discuss and resolve the EEO complaints.

The Judge rejected the Respondent's argument that Benton's mediation session was not a formal discussion since Benton's EEO complaint at issue was filed pursuant to the terms of a settlement agreement in a class action suit, Donnelly v. Glickman. The Judge noted that Section 21 of the settlement agreement "authorized class members to file EEO complaints that would otherwise be time barred." Id. at 22 n.18. The Judge, noting the Respondent's "bare assertion" in this regard, found "no basis for finding that the origin of one of the complaints discussed at the meeting offsets the indicia that indicate the meeting was formal in nature." Id.

The Judge found that it was undisputed that the three mediation sessions were between a representative of the agency and a unit employee.

Relying on Authority precedent, the Judge further found that the three mediation sessions involving EEO complaints concerned a "grievance" within the meaning of § 7114(a)(2)(A) of the Statute. The Judge noted that the Authority has found that the broad definition of grievance under § 7103(a)(9) includes any employment-related [ v60 p646 ] complaint, regardless of the forum in which the complaint is pursued. The Judge also noted the Authority's holding that the statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure, and that this principle applies whether EEO claims are excluded from coverage or included within the coverage of a negotiated grievance procedure. Id. at 23 (citing Marine Corps Logistics Base, Barstow, Cal., 52 FLRA 1039, 1047 (1997)). The Judge noted that in light of his findings that Crespin and Genzmer's EEO disputes had developed into formal complaints at the time of the mediation sessions, it was "not necessary to determine whether an EEO dispute that is at the pre-complaint or counseling stage constitutes a grievance within the meaning of section 7114(a)(2)(A)." Id.

Further, relying on Authority precedent, the Judge rejected the Respondent's claims that the facts surrounding these three mediation sessions presented a direct conflict between the Union's institutional rights under § 7114(a)(2)(A) and the employees' rights to confidentiality in EEO proceedings. Id. at 24. The Judge found that the Authority had considered and rejected similar arguments in Luke II and Dover as hypothetical in nature. Relying on Luke II, the Judge also rejected the Respondent's claim that the Union's presence at these mediation sessions violated the Privacy Act, as well as other laws and regulations pertaining to the protection of an individual's confidentiality. The Judge found that the Respondent had not presented any evidence that the mediation sessions involved any information or records at issue under the laws and regulations identified by the Respondent. Id. at 25.

Lastly, the Judge rejected the Respondent's argument that there is an inherent conflict in allowing the Union to be present at meetings in the context of the EEO complaint process. The Judge noted that instead of adopting an approach that such an intrinsic conflict exists, the Authority has recognized that "`an appropriate resolution is required in the event of a direct conflict between individual and institutional rights.'" Id. (citing Luke II, 58 FLRA at 535 quoting Dover).

IV. Respondent's Exceptions

A. Crespin and Genzmer's Complaints

The Respondent excepts to the Judge's findings that the meetings involving employees Crespin and Genzmer occurred as part of the formal EEO process. Rather, the Respondent maintains that these meetings involved complaints that were in the informal EEO process, and as such, were not formal discussions under § 7114(a)(2)(A) of the Statute. In support of its position, the Respondent cites Authority and judicial decisions in which the Authority and courts have found that meetings conducted during the informal EEO process were not "formal discussions" under § 7114(a)(2)(A). Exceptions at 7 (citing IRS Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019 (9th Cir. 1983)). The Respondent contends that the Judge erred by relying on EEO MD-110 as "the definitive regulation," as opposed to the Agency's EEO regulations, to determine whether the complaints were in the formal or informal stage. Id. The Respondent contends that under its unique EEO process, Crespin's and Genzmer's complaints were in the informal process when their respective mediation sessions occurred since their complaints had not yet been accepted by the DOA's OCR.

The Respondent maintains that at the time of the mediation session, none of Crespin's complaints were officially within the formal EEO complaint system. The Respondent notes that Crespin filed his first complaint in January 2000 and had failed to appeal the Agency's final decision on this complaint that was issued on April 11, 2001. Moreover, regarding Crespin's second complaint, the Respondent maintains that Crespin filed the pre-complaint on May 21, 2001, and requested alternative dispute resolution (ADR) on May 29, 2001. Subsequently, on September 10, 2001, mediation was scheduled for September 26, 2001. On September 13, 2001, Crespin filed his formal EEO complaint, which was received by the DOA on September 20, 2001.

The Respondent maintains that since neither an acknowledgment nor an acceptance letter had been issued for the second complaint, it had no knowledge that Crespin had filed a formal complaint. Nonetheless, the Respondent points out that although management would not have been aware of the status of these complaints at the time of the mediation, it was prepared to consider any of Crespin's claims at the early intervention program (EIP) mediation session. Id. at 15-16. In this respect, the Respondent notes that the settlement agreement covers both complaints. The Respondent maintains that this fact demonstrates how separate the ADR EIP procedures are from the formal procedures.

Similarly, with regard to employee Genzmer's claims, the Respondent also maintains that mediation of both of her formal complaints that were mailed on October 4, 2001 and January 6, 2002 was conducted under the informal process since at the time of the mediation session, the DOA had not yet accepted these complaints. The Respondent contends that the mediation session that occurred on March 8, 2002, concerning both of Genzmer's formal complaints, was during the informal [ v60 p647 ] process since the formal process started when the DOA subsequently issued an acceptance letter concerning both complaints on June 21, 2002.

In addition, the Respondent argues that although Crespin and Genzmer could have designated a union official as their representative for their mediation session, they instead designated another employee (Ginelle O'Connor) who was one of the named plaintiffs in a class action suit against the DOA. Also, the Respondent maintains that the employees could have filed a grievance instead of an EEO complaint. The Respondent notes that the Union's role in "the EEO and EIP process is demonstrated by the fact that the [U]nion was advised of the settlement and negotiated with the management." Id. at 16. See Exhibit 23.

B. Benton's Complaint

The Respondent maintains that the Judge erred in finding that the mediation session involving employee Benton was a formal discussion under § 7114(a)(2)(A). The Respondent claims that since one of Benton's complaints was filed under a settlement agreement approved by a federal district court and not the negotiated grievance procedures or EEO complaint process, these circumstances are "unique and require a different result." Id. at 18. The Respondent also maintains that the mediation was not held as part of the EIP to resolve collective bargaining disputes or EEO complaints. Id. at 20.

C. Authority's Formality Criteria

The Respondent urges the Authority to reexamine the formality criteria. The Respondent contends that the Authority has "all but eviscerated any semblance of the former principles of the concept of [a] formal discussion." Id. at 22. The Respondent maintains that the Authority is not precluded from reconsidering this precedent by the court's decision in Dover AFB v. FLRA, as the court merely upheld the Authority's decision as "`reasonable' under [the] Chevron" standard. Exceptions at 23. In this respect, the Respondent maintains that the Authority should look at the totality of circumstances presented. Moreover, the Respondent argues that the Authority should focus on the "crucial fact" that a neutral mediator conducts the mediation session, not the management officials in attendance. Also, regarding the status of the management officials attending the mediation, the Respondent contends that "the important fact" is that such officials are not in the employee's chain of command. Id. at 24. The Respondent argues that the Authority has recognized that whether a meeting comes within the scope of § 7114(a)(2)(A) is based on "the subject matter of the meetings" and whether "these meetings include discussions about general rules or policies" rather than discussions with individuals about a personal workplace dispute. Id. at 23. The Respondent argues that the fact that the meeting took place away from the duty station and lasted a long time is not relevant to the statutory purpose of § 7114(a)(2)(A).

D. The Mediation Sessions Concerned a "Grievance"

The Respondent contends that the Judge erred in holding that the mediation sessions involved a "grievance" within the meaning of § 7114(a)(2)(A) of the Statute. In this respect, the Respondent argues that unlike the circumstances in Luke I, Dover, and Luke II, the fact that EEO claims are not excluded from the coverage of the parties' negotiated grievance procedure (NGP) and employees therefore have a choice in filing a grievance under the NGP or an EEO complaint warrants a different interpretation of "grievance" under § 7114(a)(2)(A). Exceptions at 26-28.

E. Union's Presence at Mediation Sessions Is Prohibited by EEOC Regulations, ADRA, and Other Statutes and Regulations

The Respondent contends that the Judge erred in failing to find that the Union's attendance at EEO mediation sessions is prohibited by EEOC regulations and other statutes. The Respondent maintains that contrary to the Judge's findings, these arguments were not previously considered by the Authority. The Respondent maintains that the Authority should defer to the EEOC's interpretations of its regulations and that "[t]he EEOC has never adopted a rule allowing for the union's presence at mediations." Id. at 33. In this respect, the Respondent notes that attendance at administrative hearings on EEO complaints is limited to persons with "direct knowledge relating to the complaint," and that such hearings are closed to the public. Id. at 36 (citing § 1614.109(c)).

The Respondent maintains that the Authority's position fails to consider the "drastic changes in the mediation process," and the negative "impact" of including the Union, a "third party with broader interests and concerns would have on this system of reaching individualized settlement of complaints[.]" Id. at 37. In this respect, the Respondent contends that nothing in § 7114(a)(2)(A) of the Statute requires that the Union representative maintain the confidentiality of matters discussed at the mediation session. Also, the Respondent argues that given the Union's obligation to keep the unit informed of issues that affect the unit, the Union's presence at EEO mediation sessions would have a [ v60 p648 ] "chilling effect across the entire EEO process[,]" and "even inhibit employees from filing EEO complaints." Id. at 39, 38.

The Respondent notes that EEO-MD-110 provides that agencies are prohibited from disclosing information relating to pre-complaints and formal complaints to unions under the Privacy Act unless the complainant elects union representation or provides written consent. Id. at 41 (citing Chapter 3, Section II(A)(6)). The Respondent argues that agencies must abide by such provisions in the EEO-MD-110 since EEOC Regulations require that agency procedures comply with the "instructions for complaint processing contained in [EEOC's] Management directives." Id. at 40 (citing § 1614.104(a)). The Respondent maintains that this provision of EEO-MD-110 prohibiting disclosure of information to unions clearly contradicts the Authority's finding that no provision in EEOC's regulations precludes union attendance at mediation sessions of EEO complaints. In this respect, the Respondent maintains that the Authority and the D.C. Circuit have viewed these directives as mere guidance and have failed to consider the regulatory nature of such directives.

The Respondent maintains that the Union's attendance at mediation sessions is prohibited by the Administrative Dispute Resolution Act (ADRA) and the Privacy Act. The Respondent also maintains that the Union's attendance at mediation sessions would violate the following statutes, not addressed by the Authority or courts: (1) the Public Health Services Act, 42 U.S.C. § 290dd-2 et seq. , which requires that agencies maintain records relating to employees' drug and alcohol abuse in strict confidentiality; (2) Executive Order 13145, which requires agencies to maintain the confidentiality of an employee's genetic information; (3) Office of Personnel Management's (OPM) list of routine uses; (4) the Rehabilitation Act; (5) the Americans with Disabilities Act; and (6) 38 U.S.C. § 7332, which protects the confidentiality of certain medical records of patients of the Veterans Health Administration.

F. Inherent Conflict of Interest in Union's Representation at Mediation Sessions

The Respondent contends that there are inherent as well as direct conflicts of interest with the Union's involvement in the case processing of individual EEO complaints. The Respondent maintains that there have been a number of class action discrimination suits filed by women and Hispanic employees against the DOA and that the Union has filed objections to proposed settlement agreements in these cases. The Respondent notes that all three of the employees in this case selected a named plaintiff in one of these suits as their personal representative. The Respondent contends that hostile work environment claims frequently involve the actions of numerous co-workers, who are members of the bargaining unit, and that the Union is usually asked to represent the alleged wrongdoer who may be subject to discipline. In addition, the Respondent claims that there are "practical problems" in allowing the Union to attend a mediation session. Id. at 54.

G. New Policy for Dealing with Union Involvement in EEO Disputes

The Respondent contends that the Union's interests should be addressed solely in the resolution phase of the EEO complaint process, whereby the Union would be given an opportunity to review any proposed agreement and negotiate on either its substance and/or impact and implementation, as appropriate. Id. at 21-22 (citing March AFB, 57 FLRA 392 (2001)).

V. General Counsel's Opposition

The GC argues that based on Authority precedent set forth in Luke II, Dover, and Luke I, the Authority should deny the Respondent's exceptions, which were all previously raised and rejected in these cases.

VI. Analysis and Conclusions

As explained below, we find that the mediation sessions involving employees Crespin and Genzmer, which occurred after they filed formal EEO complaints and sought to resolve such complaints, were formal discussions within the meaning of § 7114(a)(2)(A) of the Statute. Similarly, we find that the mediation session involving employee Benton's formal EEO complaint was a formal discussion within the meaning of § 7114(a)(2)(A) of the Statute. In addition, we find that the Respondent has failed to demonstrate that the presence of a Union representative at these mediation sessions would conflict with EEOC regulations, ADRA, Privacy Act and the host of other laws and regulations cited by the Respondent. Therefore, we find that the Respondent violated § 7116(a)(1) and (8) by failing to provide the Union notice and an opportunity to be represented at these mediation sessions.

A. Crespin and Genzmer's Complaints

In order for a union to have the right to representation under § 7114(a)(2)(A), there must be: (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance [ v60 p649 ] or any personnel policy or practice or other general condition of employment. Dover, 57 FLRA at 306; Luke I, 54 FLRA at 723; Gen. Servs. Admin., Region 9, 48 FLRA 1348, 1354 (1994) (GSA).

The Respondent contends that Crespin and Genzmer's mediation sessions were not formal discussions under § 7114(a)(2)(A) because their filed complaints were not part of the formal EEO complaint process as of the time of the mediation sessions since the DOA had not yet issued letters accepting the complaints under its EEO regulations. For the following reasons, we reject the Respondent's contention.

We find, in agreement with the Judge, that the employees' complaints were part of the formal EEO process as of the time of the mediation sessions. Under EEOC regulations and directives, the formal EEO complaint process begins with the filing of a formal complaint after the issuance of the notice of right to file a discrimination complaint, not with the agency's subsequent acceptance of the filed complaint. See § 1614.105 (informal pre-complaint processing) and § 1614.106 (filing of complaints after receipt of notice of right to file a discrimination complaint). Thus, the fact that letters of acknowledgment and/or acceptance of the filed complaints were not issued by the DOA until after the mediation sessions is not a relevant factor in determining whether the filed complaints were part of the formal EEO process. In this respect, we reject the Respondent's claims that the Judge erred in relying on EEO MD-110 in determining the effective filing date for formal complaints as prior to the issuance of acceptance and/or acknowledgment letters by DOA. We find that Judge's reliance on EEO-MD-110 was in line with EEOC's Regulations that require agency procedures to be consistent with instructions for complaint processing in EEOC's management directives, such as EEO MD-110. See § 1614.104 (a).

Also, we reject the Respondent's claims that it had no knowledge that formal complaints had been filed by the employees as of the time of the mediation sessions since copies of the acknowledgment or acceptance letters had not yet been issued by DOA's OCR. In this respect, we note that the Respondent was represented by management officials in the Forest Service who were notified of the mediation sessions in advance. As such, these officials had the opportunity to confirm whether formal complaints had been filed by the employees and to ensure that the Union received notice and an opportunity to attend the mediation sessions. Thus, the Respondent has not demonstrated that the Judge erred in finding that the mediation sessions involved formal EEO complaints.

Moreover, as stated in Dover, in order to determine whether meetings constitute formal discussions under § 7114(a)(2)(A), the totality of the circumstances presented must be examined and the following illustrative factors are considered: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) the length of the discussions; (6) whether a formal agenda was established; and (7) the manner in which the discussions were conducted. Dover, 57 FLRA at 307.

We will apply these factors to the three mediation sessions at issue in this case.

Examining the totality of the circumstances, we agree with the Judge that the discussions involving Crespin and Genzmer are like the discussions that occurred in Luke II, Dover, and Luke I. With regard to both employees, the meetings were scheduled more than two weeks in advance; the established purpose of the meetings was to mediate and resolve their EEO complaints; the attendees were provided information concerning the mediation in advance of the meetings; the meetings were held in locations away from their work sites; and attendees at the meetings included management representatives/officials with full authority to settle the EEO complaints. Also, we note that the parties did not dispute the Judge's finding that the meetings followed a traditional mediation format consisting of joint and/or separate discussions between the parties facilitated by a mediator. Accordingly, we find that the Respondent has not demonstrated that the Judge erred in finding that Crespin and Genzmer's mediation sessions were formal discussions under § 7114(a)(2)(A).

B. Benton's Complaints

We reject the Respondent's exception that the Judge erred in finding that the mediation session involving employee Benton was a formal discussion under § 7114(a)(2)(A) since one of her complaints was filed pursuant to a court-approved settlement agreement and not the negotiated grievance procedure or EEO procedures. [n2]

Our review of the record reveals the following. On June 19, 2001, Benton filed a complaint with the designated non-Agency Complaint Administrator under the settlement agreement. By letter dated October 22, 2001, [ v60 p650 ] the DOA acknowledged and accepted for investigation Benton's complaint. See Exhibits 30, 31. Benton subsequently requested mediation. Exceptions at 19. The Respondent coordinated the date and time of the mediation session and made the location arrangements. By letter dated March 26, 2002, the EIP Manager confirmed that the mediation session to resolve Benton's complaints was scheduled for April 8, 2002. The confirmation was sent to the following attendees: Benton, her personal representatives, and management representatives (the Lake Tahoe Basin Management Unit Forest Supervisor with full authority to resolve the complaints and a Technical representative), and the mediator. The mediation session was held as scheduled at a hotel and lasted approximately 8 hours. See Exhibit 32. The parties signed an "Agreement to Mediate," which provided that participation in the process was voluntary and specified measures to safeguard the confidentiality of the process. Exhibit 33.

Based on the foregoing, we agree with the Judge that the mediation session constituted a formal discussion under § 7114(a)(2)(A). Applying the formality criteria set forth above, we note that the mediation was scheduled two weeks in advance; attendees at the mediation included the Lake Tahoe Basin Management Unit Supervisor who had full authority to settle the EEO complaint on behalf of the Respondent and a technical representative; the meeting had an agenda to discuss and resolve the EEO complaints; the mediation occurred in a hotel, away from the employee's work site; and the mediation lasted approximately 8 hours.

Furthermore, we reject the Respondent's claim that Benton's mediation session was not a formal discussion under § 7114(a)(2)(A) because the complaint was filed in accordance with the terms of the court-approved settlement agreement in the Donnelly v. Glickman class action suit. [n3] Based on our review of the process prescribed by the terms of the settlement agreement, we find no meaningful basis for distinguishing Benton's formal EEO complaint in this case from Luke I, Dover, and Luke II. Under the terms of the settlement agreement, the Complaint Administrator refers all eligible complaints to the Respondent and DOA for "normal" informal and formal processing in accordance with EEOC Regulations, 29 C.F.R. Part 1614, and 42 U.S.C. § 2000e-16, like any other EEO complaint that is filed directly with the DOA. See Settlement Agreement, Exhibit 11, § 21.6 - § 21.7 at 29.

Moreover, we reject the Respondent's assertion that Benton's mediation was not held as part of its EIP to resolve EEO complaints. The Respondent has not demonstrated, and the record does not show how availability of ADR through the EIP under the settlement agreement is substantially different from the mediation of other EEO complaints under the EIP that are not filed pursuant to the settlement agreement. See id., § 11.6 at 23-24 (settlement agreement does not specify any changes to the EIP process). We note that the Respondent's provision of ADR under the EIP for complaints filed pursuant to the settlement agreement is consistent with EEOC's Regulations that require agencies to provide ADR at all stages of the pre-complaint and formal EEO process. See § 1614.102(b)(2). Thus, we agree with the Judge that Benton's mediation session was a formal discussion under § 7114(a)(2)(A) that the Union had a right to attend.

C. Formality Criteria under § 7114(a)(2)(A)

We reject the Respondent's contention that the Authority should reverse or overturn its precedent governing formality and that the Authority has eviscerated the principles or concept of a formal discussion. We find that the Authority's application of § 7114(a)(2)(A) in Luke I, Dover, and Luke II to EEO mediation sessions is fully consistent with the section's statutory purpose.

In considering the application and scope of § 7114(a)(2)(A), the Authority has stated that

[I]n examining each of the[] elements [of § 7114(a)(2)(A)], we will be guided by that section's intent and purpose
--to provide the union with an opportunity to safeguard its interests and the interests of employees in the bargaining unit--viewed in the context of a union's full range of responsibilities under the Statute.

Exhibit 5.

United States Dep't of Justice, Bureau of Prisons, Federal Correctional Institution, (Ray Brook, N.Y.), 29 FLRA 584, 588-89 (1987). In Dover, in considering the statutory purpose of § 7114(a)(2)(A), the Authority found that "unions have an established interest in how allegations of discrimination are dealt with and resolved, regardless of the forum in which the employee chooses to lodge the complaint." Dover, 57 FLRA at 309 (citing NTEU v. FLRA, 774 F.2d at 1188). The Authority found that the union in Dover had "an undeniable [ v60 p651 ] representational interest in, among other things, disciplinary action taken against [the complainant] even though [the complainant] did not challenge the matter through the NGP." Id. (citing AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (recognizing union's
§ 7114 interest in discipline imposed on bargaining unit employees, even though the employees did not file a grievance or seek union representation concerning the discipline)).

In addition, the Authority has held that "the processing of an individual complaint through EEO procedures can have an effect on the entire bargaining unit, which the union represents." Id. Further, in Dover, the Authority noted the Tenth Circuit's explanation that "by providing formal discussion rights for discrete grievances and not just general personnel policies, the Statute recognizes that the resolution of an individual employee complaint may have an impact on the rights of other unit employees." Id. (citing Dep't of Veterans Affairs, Denver, Colorado v. FLRA, 3 F.3d 1386, 1390 (10th Cir. 1993)). Here, the Respondent does not dispute that the settlement of an EEO complaint could have an impact on the rest of the unit.

With respect to its request that the Authority reconsider the application of the formality criteria under § 7114(a)(2)(A), the Respondent raises substantively identical arguments to those that have been previously raised and rejected by the Authority. Accordingly, we find that the Respondent has not presented a basis for reconsideration of or departure of the Authority's precedent in this regard.

D. The Mediation Sessions Concerned a "Grievance"

We reject the Respondent's exception to the Judge's conclusion that these mediation sessions involving EEO complaints concerned a grievance within the meaning of § 7114(a)(2)(A) of the Statute. The Authority has already addressed and resolved this issue. As noted recently in Luke II, the Authority has "revisited and thoroughly reviewed the issue of whether EEO complaints pursued through a statutory appeals procedure are grievances under § 7114(a)(2)(A) and decided to adhere to its view that the scope of the term `grievance' encompasses such complaints, based on the express language of the Statute, the legislative history of the Statute, and the purpose of the Statute's provision for union representation under § 7114(a)(2)(A)." Luke II, 58 FLRA at 533 (citing Dover, 57 FLRA at 308-09).

Further, we reject the Respondent's exception that this case warrants a finding that the Union is not entitled to its representational rights under § 7114(a)(2)(A) since EEO claims are not excluded from coverage of the parties' negotiated grievance procedure. In Luke II, the Authority reaffirmed its holdings in Dover, that were affirmed by the D.C. Circuit Court of Appeals in Dover AFB v. FLRA, that the "broad definition of `grievance' under the Statute encompasses complaints filed under a NGP as well as complaints filed under alternative statutory procedures of the EEOC." Id. (footnote omitted). In this respect, the Authority has reaffirmed its previous holdings in Luke I and Dover, that the statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Luke II, 58 FLRA FLRA at 534. The Respondent presents no new arguments that merit reconsideration of or departure from this precedent.

E. EEOC Regulations, ADRA, Privacy Act and Other Statutes

Except for the arguments pertaining to EEO-MD-110 and 38 U.S.C. § 7332, which we address below, the Authority has considered and rejected arguments substantively identical to the remaining arguments made by the Respondent in this case; namely, that the Union's presence at mediation sessions conflicts with EEOC Regulations, ADRA, the Privacy Act and other statutes and regulations that protect the confidentiality of certain information and records. See Luke II, 58 FLRA at 531 (respondent's exceptions that union's attendance would violate provisions of EEOC regulations, ADRA, Privacy Act, OPM's list of routine use exceptions; Public Health Services Act, Executive Order 13145; Rehabilitation Act and Americans with Disabilities Act). As in Luke II, we find that

[T]he Respondent presents hypothetical situations where the Union's presence at mediation and settlement discussions could create potential conflicts with certain laws governing confidentiality. Moreover, we also note that, as the D.C. Circuit stated in Dover AFB v. FLRA in response to "the Air Force's doubt that union representatives can keep confidential matters confidential[,] [u]nion representatives are often in the position of having to maintain confidentiality." Dover AFB v. FLRA, 316 F.3d at 287. Here, the Respondent makes no claim, and there is no indication in the stipulated record, that the Union would have objected to or failed to comply with any confidentiality requirements imposed by the mediator in this case. . . .

In addition, we reject the Respondent's claims [that] the Union's presence at the mediation session conflicts with the confidentiality provisions [ v60 p652 ] under the Public Health Services Act, protecting an employee's drug and alcohol abuse records; Executive Order 13145, protecting an employee's genetic information; or the Rehabilitation Act and EEOC regulations protecting an employee's medical records. The Respondent presented no evidence that this case involved any information or records protected from disclosure by agencies by these laws, and in turn that any such improper disclosure would have occurred here had a Union representative attended the mediation and settlement discussions. In this respect, we find "the Union's statutory right to be represented at such [mediation and settlement discussions] cannot be nullified on the speculative grounds of potential privacy problems under the Privacy Act." GSA II, 53 FLRA FLRA at 936. Rather, such hypothetical issues are more appropriately addressed in an actual case when squarely presented. See Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997) (declining to decide cases before they are ripe avoids adjudicating abstract disagreements, enhances judicial economy, and ensures that an adequate record exists to support an informed decision).

Luke II, 58 FLRA at 535, 536.

In the same vein, we reject the Respondent's contention that Section II(A)(6) of EEO-MD-110 specifically prohibits the Union's attendance at EEO mediation and settlement discussions. Section II(A)(6) provides in pertinent part that

Agencies must also be mindful of the prohibitions on the disclosure of information about individuals imposed by the Privacy Act. All pre- and post-complaint information is contained in a system of records subject to the Act. Such information, including the fact that a particular person has sought counseling or filed a complaint, cannot be disclosed to a union unless the complaining party elects union representation or gives his/her written consent.

Contrary to the Respondent's assertion, this provision of EEO-MD-110 does not specifically address or prohibit the Union's attendance at EEO mediation and settlement discussions. Rather, the provision represents the EEOC's interpretation of the Privacy Act that an agency's disclosure of certain information to a union would violate the Privacy Act. As relevant here, although not in the context of EEO-MD-110, in Luke II, the Authority has previously addressed and rejected claims that a union's presence at mediation and settlement discussions would necessarily result in the disclosure of information in violation of the Privacy Act.

In rejecting these claims, the Authority noted "the D.C. Circuit's view that the Privacy Act concerns the confidentiality of records and does not address what parties may attend an ADR proceeding." Luke II, 58 FLRA at 535 (citing Dover AFB v. FLRA, 316 F.3d at 286). Moreover, as the Authority noted in Luke II, "courts hold that a disclosure' within the meaning of the Privacy Act is the actual retrieval of any information from arecord' within the meaning of the Act." [n4] Id. In this respect, the Authority noted that in the leading case involving this actual retrieval standard, the court held that for a disclosure to be covered by the Act, "`there must have initially been a retrieval from the system of records which was at some point a source of the information." Id. (citing Savarese v. United States Dep't of Health, Education and Welfare, 479 F. Supp. 304, 308 (N.D. Ga. 1979), aff'd mem. sub nom, Savarese v. Harris, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078 (1981)).

Consistent with the actual retrieval standard applied by the courts above and by the Authority in Luke II, and noting the absence of any reliance by the Respondent on court decisions dealing with the Privacy Act, we find that the Respondent in this case has not demonstrated that the Union's acquisition of knowledge of the nature of the complaint as a result of the agency providing notice of, and the Union's attendance at, mediation and settlement discussions would require a retrieval of information in violation of the Privacy Act. Id. at 535-36. Accordingly, for the reasons explained above, we find no basis for finding a violation of the Privacy Act in this case, and in turn, no basis for finding a violation of EEO-MD-110.

Finally, the Respondent does not assert or point to any evidence in the record that the employees in this case are patients of the Veterans Health Administration (VHA). As such, the Respondent has not demonstrated how the Union's presence at the mediation and settlement discussions in this case could have [ v60 p653 ] violated 38 U.S.C. § 7332, which protects the confidentiality of certain medical records of VHA patients.

Thus, for the reasons set forth in Luke II and Dover, we reject the Respondent's exception that this case warrants a finding that the Union is not entitled to its representational rights under § 7114(a)(2)(A) of the Statute.

F. Inherent and Direct Conflicts of Interest

The United States Court of Appeals for the District of Columbia and the Authority have recognized that an appropriate resolution is required in the event of a direct conflict between individual and institutional rights. Luke II, 58 FLRA at 535; Dover, 57 FLRA at 309 (citing NTEU v. FLRA, 774 F.2d at 1189 n.12). [n5] See also United States Dep't of Justice, Bureau of Prisons, Federal Corr. Inst. (Ray Brook, N.Y.), 29 FLRA 584, 590 (1987) (if there is a conflict between rights under § 7114(a)(2)(A) and those under other statutes, the Authority will consider that conflict in determining whether section § 7114(a)(2)(A) has been violated), aff'd sub nom. AFGE, Local 3882 v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989).

We reject the Respondent's exception in this case that the fact that the Union objected to the proposed settlement agreements in EEO class action law suits that were filed against DOA poses an inherent and direct conflict of interest that precludes the Union's participation in EEO mediation sessions. As relevant here, the record reveals that in the Donnelly v. Glickman law suit, the Union objected to the settlement agreement because it did not require bargaining with the Union. In this respect, the court found that none of the terms of the settlement agreement that affect the Union's rights can be implemented unless proper notice and an opportunity to bargain are provided to the Union and that the bargaining provisions of the parties' Master Labor Agreement are followed. Exhibit 13, Order approving Settlement Agreement in Donnelly v. Glickman at 10. The court also noted that "the parties [in the lawsuit] ha[d] agreed that none of the procedures of the settlement which affect conditions of employment will be implemented without engaging in bargaining with the Union." Id. The court noted that as a result of the Union's objections regarding the insufficient level of privacy and confidentiality for unit members, the parties in the lawsuit had agreed on revisions to the agreement that addressed the Union's concerns. Id. at 12. Essentially, the Union's objections sought to protect its bargaining rights over changes in conditions of employment and to protect the confidentiality of its members. As such, we find nothing in these circumstances that creates any conflict, much less a direct conflict, between the Union's institutional rights and the employees' individual rights that would have necessitated disallowing the Union's presence at the mediation sessions in this case.

Further, we reject the Respondent's claim that the Union's representation of alleged wrongdoers in hostile work environment claims, which frequently involve the actions of numerous unit members who may be subject to discipline, constitutes a basis for precluding the Union from attending EEO mediation sessions in this case. The Respondent makes no specific claim, and there is no indication in the stipulated record, that there any such conflict existed in this case. Hence, we reject the Respondent's hypothetical claims. Luke II, 58 FLRA at 536 ("hypothetical issues are more appropriately addressed in an actual case when squarely presented").

In addition, we reject the Respondent's contention that had the employees in this case desired the Union's presence at the mediation sessions they would have chosen a union representative as their personal representative. The Respondent's reliance on this fact is misplaced. The employees' choice of personal representative under the EEOC regulations does not have any bearing on the separate right of the Union to attend such mediation hearings under § 7114(a)(2)(A) of the Statute. Moreover, the fact that the employees did not choose a union representative as their personal representative does not suggest or prove that the employees would have objected to the Union's presence at their mediation sessions. [n6]

G. New Policy for Dealing with Union Involvement in EEO Disputes

We reject the Respondent's contention that the Union should only be granted the right to bargain over the impact and implementation, and substance if appropriate, of settlement agreements of EEO complaints reached in mediation sessions. The Statute grants the Union the right to be present at formal discussions, [ v60 p654 ] including mediation sessions of EEO complaints as the Authority and D.C. Circuit have found, under § 7114(a)(2)(A). As we have stated above, the Authority has found that this is not an absolute right and that considerations of direct conflicts will be taken into account. The Authority cannot nullify the Union's statutory right under § 7114(a)(2)(A) in favor of, or in subordination to, its right to bargain over the impact and implementation regarding changes that an effect on the bargaining unit.

In conclusion, we find, in agreement with the Judge and for the reasons stated above, that the Respondent committed the unfair labor practices alleged in the complaints in violation of § 7116(a)(1) and (8) of the Statute.

VII. Order

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, United States Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California shall:

1. Cease and desist from:

(a) Failing or refusing to provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of rights assured them by the Statute.

2. Take the following affirmative actions in order to effectuate the purposes of the Statute:

(a) Provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including discussions to mediate settlement of formal EEO complaints filed by bargaining unit employees.

(b) Post at all facilities of the United States Department of Agriculture, Forest Service, Los Padres National Forest, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms shall be signed by the Los Padres National Forest Supervisor and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the San Francisco Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. [ v60 p655 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California, has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the employees' exclusive representative, National Federation of Federal Employees, Local 2023, AFL-CIO (the Union), advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practices or other general conditions of employment, including meetings to mediate settlement of formal EEO complaints filed by bargaining unit employees.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide the Union advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal EEO complaints.

________

(Activity)

Date:_ By:_______

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-1791 and whose phone number is: (415) 356- 5000.

Dissenting opinion of Chairman Cabaniss:

Consistent with my views set out in prior cases involving these same issues, I would dismiss the complaint in this case as not involving a formal discussion under § 7114(a)(2)(A), and therefore dissent from the majority decision in this case. See, e.g., United States Dep't of the Air Force, Luke AFB, Ariz., 58 FLRA 528, 538 (2003).

File 1: Authority's Decision in 60
FLRA No.
128 and Opinion of Chairman Cabaniss

File 2: ALJ Decision

Footnote # 1 for
60
FLRA No. 128

• Authority's Decision

The dissenting opinion of Chairman Cabaniss is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 128

• Authority's Decision

The Respondent does not raise any objections to Benton's other complaints that were mentioned in the DOA's acceptance letter.

Footnote # 3 for
60
FLRA No. 128

• Authority's Decision

The court-approved settlement agreement authorized certain employees in Region 5 of the Forest Service in California, who had been subjected to a hostile work environment between February 1, 1994 and February 6, 2001, to initiate an individual EEO complaint by filing a "Settlement Agreement Complaint Form" with an independent Complaint Administrator. See Settlement Agreement, Exhibit 11, § 21.1 at 27.

Footnote # 4 for
60
FLRA No. 128

• Authority's Decision

The Privacy Act, 5 U.S.C. § 552a, restricts the disclosure, and redisclosure, of personally identifiable records. As relevant,
§ 552a(b) provides, with certain exceptions, that:

No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains[.]

Footnote # 5 for
60
FLRA No. 128

• Authority's Decision

As relevant here, the court stated in note 12 that "a direct conflict between the rights of an exclusive representative under
§ 7114(a)(2)(A) and the rights of an employee victim of discrimination should also presumably be resolved in favor of the latter." NTEU v. FLRA, 774 F.2d at 1189 n.12 (emphasis in original).

Footnote # 6 for
60
FLRA No. 128

• Authority's Decision

Member Armendariz notes, consistent with his concurrence in Luke II, that in this case, there is no evidence of a direct conflict between a union's institutional rights and an employee right to confidentiality. Based on the record before the Authority, the facts here demonstrate no such conflict, direct or otherwise.

[ v60
p656 ]

Office of Administrative Law Judges

DEPARTMENT OF AGRICULTURE

FOREST SERVICE

LOS PADRES NATIONAL FOREST

GOLETA, CALIFORNIA

Respondent

and

NATIONAL FEDERATION

OF FEDERAL EMPLOYEES

LOCAL 2023, AFL-CIO

Charging Party

Case Nos. SF-CA-02-0133

SF-CA-02-0400

SF-CA-02-0525

John R. Pannozzo, Jr., Esquire

For the General Counsel

Joseph L. Duran

For the Charging Party

Robert J. Wilson

For the Respondent

Before: ELI NASH

Chief Administrative Law Judge

DECISION

Statement of the Case

On July 23, 2002, the Regional Director for the San Francisco Region of the Federal Labor Relations Authority (herein called the Authority), issued a Consolidated Complaint and Notice of Hearing in the captioned matter. This proceeding was initiated by three unfair labor practice charges filed by the National Federation of Federal Employees, Local 2023, AFL-CIO (herein called the Union). The consolidated complaint alleges that the Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California (herein called Respondent) violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (herein called the Statute). Specifically, the consolidated complaint alleges that on three occasions the Respondent conducted formal discussions with bargaining unit employees regarding Equal Employment Opportunity (EEO) complaints that they had filed without giving the Union notice and an opportunity to be represented as required by section 7114(a)(2)(A) of the Statute.

A hearing was scheduled on these issues, but the parties filed a Joint Motion Transferring Case to the Chief Administrative Law Judge waiving their right to a hearing and requesting a decision based on a stipulation of facts and exhibits that they agree constitute the entire record in the case. Subsequently, the Respondent and the General Counsel submitted briefs in support of their respective positions. Based on this record, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

The stipulated facts are as follows:

The National Federation of Federal Employees is a labor organization within the meaning of 5 U.S.C. § 7103(a)(4) and is the exclusive representative of a nationwide unit of employees appropriate for collective bargaining within the Department of Agriculture, Forest Service, Washington, D.C.

The Union is an agent of the National Federation of Federal Employees for purposes of representing employees of the Respondent within the bargaining unit described immediately above.

The Department of Agriculture, Forest Service, Los Padres National Service, Goleta, California, is an agency within the meaning of 5 U.S.C. § 7103(a)(3).

The National Federation of Federal Employees and the Department of Agriculture, Forest Service, are parties to a nationwide collective bargaining agreement that covers employees in the bargaining unit described above, which includes employees for whom the Union is an agent.

During the time period covered by the consolidated complaint, the persons below occupied the position(s) identified next to their name:

James L. Boynton-Forest Supervisor, Sierra National Forest, Clovis, California;

Gene L. Rose-Employee Relations Specialist, Region 5, Forest Service, Vallejo, California;

Mel Teigen-Regional Engineer, Region 5, Forest Service, Vallejo, California;

Maribeth Gustafson-Forest Supervisor, Lake Tahoe Basin Management Unit, South Lake Tahoe, California;

Gary Gilbert-Private Contractor, Baltimore, Maryland, under contract to provide EEO advice and assistance. On occasion, Gilbert served as the agency's technical representative. [n1] [ v60 p657 ]

During the time period covered by the consolidated complaint, the persons listed immediately above were acting on behalf of the Respondent.

During the time period covered by the consolidated complaint, Boynton, Teigen and Gustafson were supervisors or management officials under 5 U.S.C. §§ 7103(a)(10) and (11).

Respondent's Equal Employment Opportunity (EEO) Program is governed by the regulations of the Equal Employment Opportunity Commission (EEOC), set forth at 29 C.F.R. Part 1614. The Alternative Dispute Resolution (ADR) program is described in Chapter 3 of EEOC's Management Directive 110 (MD 110) and Appendix H of MD 110, which sets forth EEOC's policy statement on ADR. Respondent's EEO program is also governed by the Department of Agriculture Departmental Regulation 4300-007, which is entitled "Processing Equal Employment Opportunity (EEO) Complaints of Discrimination" (Exhibit 7); Departmental Regulation 4710-001, which is entitled "Alternative Dispute Resolution" (Exhibit 8); and the "EEO Complaint Processing Procedures Manual" DM 4300-001 (Exhibit 9).

ADR is available at all stages of the EEO process: pre-complaint, after filing formally, and prior to a hearing. Mediation is one of the techniques that is available for use in the ADR program.

In the past, certain employees of the Forest Service have filed EEO class actions in United States District Court. In one such instance, a class of women filed a complaint, Donnelly v. Glickman, C-95-4389, dated December 8, 1995, against the Secretary of Agriculture. (Exhibit 10) A settlement agreement was proposed. (Exhibit 11) Four class members and the National Federation of Federal Employees submitted objections to the proposed settlement agreement. (Exhibit 12) A District Court Settlement Order approving the proposed settlement was issued on February 6, 2001. (Exhibit 13) [n2]

In another instance, a class of Hispanics filed a complaint in U.S. District Court in Brionez et al. v. Secretary of Agriculture, C-01-3969, dated October 22, 2001. (Exhibit 14) A settlement agreement dated June 26, 2002, was proposed. (Exhibit 15) The National Federation of Federal Employees submitted objections to the proposed settlement agreement. (Exhibit 16) A District Court Settlement Order approving the proposed settlement agreement was issued on October 22, 2002. (Exhibit 17)

Case No. SF-CA-02-0133 (Patrick Crespin)

Patrick Crespin was a GS-560-07 accounting technician at the Respondent and was in the bargaining unit. On January 10, 2000, Crespin initiated the informal EEO complaint process by contacting an EEO counselor to allege that on January 6, 2000, he was not selected for a GS-09 Budget Analyst position (Vacancy Announcement No. R507-707-99) based on physical disability (partially blind), national origin (Hispanic) and sex (male). Crespin's complaint was designated Complaint No. CRO-00472. On February 7, 2000, the EEO counselor provided Crespin a letter advising him that he could elect to participate in the ADR process and that such election would extend the informal EEO complaint process by up to 60 days.

On February 22, 2000, Crespin elected to participate in the ADR process. On March 7, 2000, the EEO counselor provided Crespin a letter advising him that the informal stage of his EEO complaint was completed and he had 15 days in which to file a formal complaint. Crespin filed a formal complaint (Complaint No. CRO-00472) on March 14, 2000, and selected Wes Shook, a fellow employee, as his representative. On June 22, 2000, the Department of Agriculture issued an acceptance letter for Complaint No. CRO-00472, which set forth the issues being referred for investigation and advised Crespin of the procedures that were to follow. (Exhibit 18) Complaint No. CRO-00472 was investigated and a report was submitted to the Department of Agriculture on October 13, 2000. On April 11, 2001, the Department of Agriculture forwarded a copy of the report to Shook and advised Shook of Crespin's appeal rights. The report advised Crespin that he could, within 30 days, withdraw his complaint, ask for a Final Agency Decision, or request a hearing from EEOC. Crespin did not appeal. [ v60 p658 ]

On April 23, 2001, Crespin was not selected for the position of Budget Analyst, GS-0560-11 (Vacancy Announcement No. R507-770-01B).

On May 21, 2001, Crespin sought EEO counseling concerning the April 23 non-selection alleging discrimination based on age (54), physical disability (legally blind) and national origin (Hispanic). His complaint was designated Complaint No. CRO-10797. Crespin selected Ginelle O'Connor, a fellow employee, as his EEO representative.

On May 29, 2001, Crespin requested ADR. Subsequently, the Respondent agreed to mediation.

On August 19, 2001, Crespin received his Notice of Right to File a Formal Complaint of discrimination in Complaint No. CRO-10797.

On September 10, 2001, Early Intervention Program (EIP) Manager Maxie Hamilton forwarded a "Mediation Confirmation" to Crespin; his EEO representative, O'Connor; James Boynton, the Sierra National Forest Supervisor and "Resolving Official"; [n3] and Gene Rose, who was the Regional Office Technical Representative. [n4] (Exhibit 19) The Charging Party was not provided a copy of the Mediation Confirmation.

On September 13, 2001, Crespin mailed his formal complaint in Complaint No. CRO-10797 to the Department of Agriculture, which received Crespin's formal complaint on September 20, 2001. (Exhibit 20)

On September 26, 2001, a mediation/settlement meeting was conducted involving Crespin, O'Connor, Boynton, Rose and mediator Laura Mancuso. The mediation/settlement meeting was conducted pursuant to the Department of Agriculture's ADR Program. The mediators are appointed under the Department of Agriculture's ADR Program and can mediate disputes besides those involving EEO matters. The Union did not receive advance notification of, and was not invited to attend, the September 26 meeting.

The September 26 mediation/settlement session was held at a public library in Goleta, California. The meeting began at 9:00 a.m. and lasted a majority of the day. The Respondent coordinated the date and time of the meeting and made the location arrangements.

Boynton is the highest ranking official in the Sierra National Forest; however, he does not have any supervisory authority over Crespin. Attendance at the meeting was voluntary and although notes were taken during the meeting, those notes were destroyed at the conclusion of the session. The subject of the meeting was the resolution of Crespin's discrimination complaints.

During the September 26 meeting, the "parties" entered into a Settlement Agreement. [n5] Stipulation at 7, para-graph 30. The Settlement Agreement was a resolution of all of Crespin's discrimination complaints and resulted in, among other things, Crespin receiving a promotion to a GS-9 Budget Analyst position. [n6] Crespin's promotion did not affect staffing because Crespin's GS-7 position was eliminated. (Exhibit 21) The participants in the settlement agreement also executed a "USDA Forest Service Pacific Southwest Region EIP Outcome Form." [n7] (Exhibit 22)

On October 2, 2001, the Union's Vice President, Joseph Duran, was informed by Deputy Forest Supervisor Gene Blankenbaker and then Human Resources Officer Barbara Vose that Crespin had been promoted to the GS-9 level pursuant to an EEO settlement. Crespin was one of two GS-9's on the Budget Staff.

On October 3, 2001, the Union provided pre-ULP charge notification pursuant to Article 12 of the parties' Master Agreement, to Regional Forester Brad Powell and Forest Supervisor Jeanine Derby. (Exhibit 1(g)) On October 5, 2001, the Respondent, through Blankenbaker, responded to the pre-charge notification. (Exhibit 1(g)) On October 5, 2001, the Union, through Duran, responded to Blankenbaker's letter. (Exhibit 1(g)) On November 20, 2001, the Union filed [ v60 p659 ] an unfair labor practice charge in Case No. SF-CA-02-0133.

On February 13, 2002, the Union demanded negotiations over the Crespin Settlement Agreement and the parties met on February 27, 2002. A memorandum was prepared describing the meeting. [n8] (Exhibit 23)

Case Number SF-CA-02-0400 (Cyndie Genzmer)

On June 25, 2001, Customer Service Representative Cyndie Genzmer, an employee of the Respondent and a member of the bargaining unit, contacted an EEO counselor concerning the denial of reassignment(s). This case was designated Case No. CRO-20185. The same day, Genzmer attended a union grievance meeting over the same matter(s). [n9] See Exhibit 24.

On July 19, 2001, as part of the informal EEO process, Genzmer elected ADR. Genzmer also agreed to extend counseling up to 60 days. (Exhibit 25)

On August 3, 2001, the Union filed a step one union grievance. [n10] (Exhibit 26) On August 16, 2001, the Respondent replied to the grievance. [n11] (Exhibit 27)

On September 19, 2001, Genzmer sought EEO counseling concerning another matter. This case was designated Case No. CRO-20301.

On September 24, 2001, Genzmer received a Notice of Right to File a Formal Complaint of discrimination with respect to Case No. CRO-20185. She mailed her formal complaint to the Department of Agriculture on October 4, 2001.

On January 6, 2002, Genzmer mailed her formal complaint in Case No. CRO-20301 to the Department of Agriculture.

On February 14, 2002, a Mediation Confirmation was forwarded by EIP Manager Hamilton to Genzmer, her attorney Sally Feser, her other representative Ginelle O'Connor, Resolving Official Mel Teigen, Technical Representative Gene Rose and Mediator Pat Beck. (Exhibit 28) The Respondent coordinated the date and time of the mediation/settlement session and made the location arrangements. The meeting was scheduled for March 8, 2002, at the Best Western South Coast Inn in Goleta, California. The Union was not provided a copy of the Mediation Confirmation.

The mediation/settlement session was held on March 8, 2002. It began at 9:00 a.m. and ended at approximately 3:00 p.m., with one hour for lunch. In attendance at the session were: Genzmer, Feser, O'Connor, Teigen, Rose and mediator Beck. Teigen, who is the Regional Engineer and a management official, does not have any supervisory authority over Genzmer. The Union was neither provided notification of nor attended the mediation/settlement session. Attendance was voluntary and although all parties took notes during the session, those notes were destroyed at the conclusion of the session. The subject of the mediation was resolution of Genzmer's discrimination complaints.

At the March 8, 2002, mediation session, there was a full discussion of both of Genzmer's EEO complaints. Potential resolution of those matters was discussed and offers of settlement were exchanged; however, the parties were unable to arrive at a resolution.

On March 19, 2002, the Union provided pre-ULP charge notification, pursuant to Article 12 of the parties' Master Agreement to Regional Forester Jack Blackwell and Forest Supervisor Jeanine Derby. (Exhibit 1(h)) On March 26, 2002, the Union filed the unfair labor practice charge in Case No. SF-CA-02-0400. (Exhibit 1(c))

On June 21, 2002, the Department of Agriculture issued an acceptance letter concerning Complaint Nos. CRO-20185 and CRO-20301, which set forth the issues accepted for investigation and advised Genzmer of the procedures that were to follow. (Exhibit 29) [ v60 p660 ]

Case Number SF-CA-02-0525 (Jannet Benton)

Customer Service Representative Jannet Benton, an employee of Respondent and a member of the bargaining unit, received a notification pursuant to the women's class action suit, Donnelly v. Glickman, C-95-4389, which authorized her to file any related complaint with Region 5 of the Forest Service relating to employment decisions or conditions between February 1, 1994, and February 6, 2001. On June 19, 2001, Benton filed her complaint, which was referred to the "agency" on July 6, 2001. [n12] (Exhibit 30)

By letter dated October 22, 2001, the Department of Agriculture accepted for investigation the complaint filed by Benton on July 19, 2001, along with several other formal complaints filed by Benton. (Exhibit 31)

Benton requested mediation and on March 26, 2002, a Mediation Confirmation was forwarded by EIP Manager Hamilton to Benton, her attorney Sally Feser and her other representative Ginelle O'Connor. (Exhibit 32) The Mediation Confirmation was also sent to Lake Tahoe Basin Management Unit Supervisor and Resolving Official Maribeth Gustafson, Technical Representative Gary Gilbert and Mediator Larry Huerta. The Respondent coordinated the date and time of the mediation/settlement session and made the location arrangements. The Union was not provided a copy of the Mediation Confirmation.

The mediation/settlement session was held on April 8, 2002, in a conference room at the Residence Inn, Stevenson Ranch, California. In attendance at the session were Benton, Feser, O'Connor, Gustafson, Gilbert and Huerta. The Union was neither provided advance notification of nor attended the mediation/settlement session.

At the beginning of the mediation/settlement session, the parties signed an Agreement to Mediate. [n13] (Exhibit 33)

During the session, there was a full discussion of Benton's complaints. Potential resolution of those matters was discussed and offers of settlement were made; however, the parties were unable to arrive at a resolution of the EEO matters.

The mediation/settlement session began at 10:30 a.m. and ended at approximately 6:45 p.m. with no break for lunch. Gustafson is the highest ranking official in the Lake Tahoe National Forest, but does not have any supervisory responsibility over Benton. Attendance was voluntary and although notes were taken by all parties, they were destroyed at the conclusion of the session. The subject of the mediation was resolution of Benton's EEO complaints.

On April 26, 2002, the Union provided pre-ULP charge notification pursuant to Article 12 of the parties' Master Agreement to Regional Forester Jack Blackwell and Forest Supervisor Jeanine Derby. (Exhibit 1(i))

On May 6, 2002, the Charging Party filed the charge in Case No. SF-CA-02-0525. (Exhibit 1(d))

Analysis and Conclusions

Positions of the Parties

General Counsel

The General Counsel alleges that the Respondent violated section 7116(a)(1) and (8) of the Statute by failing to provide NFFE advance notice and an opportunity to be represented at three mediation sessions involving EEO complaints filed by three different employees that constituted formal discussions within the meaning of section 7114(a)(2)(A).

In support of its assertion that the Respondent violated the Statute, the General Counsel cites several recent Authority decisions in which it was found that mediation sessions concerning EEO complaints constitute formal discussions under section 7114(a)(2)(A) of the Statute: U.S. Department of the Air Force, Luke Air Force Base, Arizona, 58 FLRA 528 (2003) (Luke II); U.S. Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 FLRA 304 (2001) (Dover), enf'd, 316 F.3d 280 (D.C. Cir. 2003); and Luke Air Force Base, Arizona, 54 FLRA 716 (1998) (Luke I), rev'd, 208 F.3d 221 (9th Cir. 1999), cert. den'd, 121 S.Ct. 60 (2000). [ v60 p661 ]

The General Counsel maintains that it is not in dispute that the mediation sessions on which the consolidated complaint is focused constituted discussions between representatives of the agency and bargaining unit employees or their representatives. The General Counsel asserts that those mediation sessions met the broad definition of "grievance" that the Authority has adopted in its decisions applying section 7114(a)(2)(A). In this regard, the General Counsel contends that the instant discussions concerned employee EEO complaints, which constitute grievances within the meaning of that section. The General Counsel argues that any claim on the part of the Respondent that there was no formal EEO complaint at the time of the mediation session involving the Genzmer case because her complaint had not yet been accepted should be rejected. The General Counsel maintains that if such argument were accepted, it would penalize the employee by allowing the Respondent to indefinitely delay the formal processing of EEO complaints.

The General Counsel contends that the mediation sessions were formal in nature. The General Counsel asserts that the circumstances involved in the meetings addressed in the consolidated complaint were very similar to those of the meetings that the Authority found were formal discussions in Luke II, Dover, and Luke I. The General Counsel cites several factors that demonstrate the formality of the three mediation sessions addressed in the consolidated complaint. Specifically, the General Counsel asserts that the mediation sessions were scheduled in advance and the employees were formally notified of them by the Respondent through its EIP Manager. Each meeting was attended by two management representatives acting on behalf of the Respondent and conducted off-site away from the employees' work sites. Each meeting was lengthy and had a planned agenda, i.e., the discussion of the employees' EEO complaints. Although they were destroyed at the end of the session, notes were taken during the meetings. Another factor demonstrating formality that the General Counsel points to is the fact that, as in Dover, the participants in the meetings signed a confidentiality agreement.

The General Counsel argues that consistent with the Authority's decisions in Luke II, Dover, and Luke I, presence of union representatives at the mediation sessions would not conflict with the regulations of the EEOC or the Alternative Dispute Resolution Act (ADRA). The General Counsel contends that there is no evidence that there would have been a direct conflict between the presence of union representatives at the mediation sessions and any of the laws governing the confidentiality of such sessions. In particular, the General Counsel points to the fact that the mediation process involved included confidentiality provisions that applied to all participants in the mediation process.

As remedy, the General Counsel requests a cease and desist order and a Notice To All Employees to be posted throughout the Los Padres National Forest and signed by the Forest Supervisor.

Respondent

The Respondent, on the other hand, contends that the mediation sessions were not formal discussions and did not involve grievances within the meaning of section 7114(a)(2)(A) of the Statute.

The Respondent asserts that the meetings involving Crespin and Genzmer occurred within the context of the informal, as contrasted with the formal, EEO process. The Respondent argues that subsequent to the issuance of the court's decision in IRS, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) (IRS, Fresno), the Authority has never held that a meeting conducted under the informal EEO process is a formal discussion. The Respondent contends that, in fact, Authority decisions support a finding that meetings conducted pursuant to the informal EEO process are not formal discussions and do not concern a "grievance." In support of this contention, the Respondent cites U.S. Government Printing Office, 23 FLRA 35 (1986) and Social Security Administration and Social Security Administration, Field Operations, New York Region, 16 FLRA 1021 (1984). Additionally, the Respondent asserts that the circumstances involved here are distinguishable from those in Luke II, Dover, and Luke I, in that the mediation sessions that were the focus of those three cases involved formal EEO complaints. The Respondent argues that under its EEO process, a complaint has to be "accepted" before it becomes formal and that in the cases of Crespin and Genzmer the meetings that are the subject of the instant complaint occurred before the EEO complaints were accepted.

The Respondent argues that Benton's EEO complaint was filed under the auspices of the District Court Settlement Agreement as contrasted with the complaint process prescribed by EEOC and, consequently, the mediation session was not a formal discussion. In this regard, the Respondent asserts that the process provided by the settlement agreement afforded the opportunity for the union's interests to be addressed if a settlement resulted from the mediation session. [ v60 p662 ]

The Respondent contends that the mediation sessions met very few of the indicia of formality that the Authority applies in determining whether meetings constitute formal discussions. Specifically, the Respondent argues that the meetings were voluntary, triggered by an employee request, scheduled by a neutral EIP coordinator, and conducted by a non-employee professional mediator. Furthermore, the Respondent maintains that there were no notes or minutes taken, and no supervisors or managers in the particular employee's chain of command were present.

The Respondent asserts that the mediation sessions did not concern grievances. The Respondent bases this assertion on the fact that the employees had the option of filing their complaints under the negotiated grievance procedure provided in the collective bargaining agreement that applied to them. Further, the Respondent urges that the majority holding by the Authority that EEO complaints constitute grievances be reconsidered and that the Authority adopt the approach followed by the U.S. Court of Appeals for the Ninth Circuit as set forth in IRS, Fresno and its reversal of Luke I and that of Chairman Cabaniss in her dissents in Luke II and Dover.

The Respondent insists that EEOC's regulations and numerous other statutes and regulations prohibit attendance by a union representative at EEO mediations. With respect to EEOC's regulations, the Respondent describes them as focusing on individual rights related to allegations of discrimination and placing an emphasis on confidentiality throughout the process for addressing those allegations. The Respondent alleges that EEOC's regulations do not authorize the presence of a union representative at mediations undertaken to resolve EEO complaints and, in fact, indicate that EEOC intends attendance at EEO complaint proceedings to be strictly limited to those who have direct knowledge relating to the complaint and the complainant's representative. The Respondent also maintains that the inclusion of a union representative, who brings the broader interests and concerns of an exclusive representative, at mediation sessions would have a negative impact on the EEO process which is essentially a system for reaching individualized settlement of complaints. Thus, Respondent argues that the FLRA should defer to EEOC's construction of the EEO complaint process and that section 7114 should not be allowed to compromise the confidentiality that EEOC has built into its process. In this vein, the Respondent contends that nothing in section 7114 requires persons attending formal discussions to keep information from such meetings confidential.

The other statutes and regulations cited by the Respondent include the Administrative Dispute Resolution Act (ADRA), which it argues, specifies that dispute resolution processes, such as mediation, be confidential. The Respondent also contends that permitting the union to attend the mediation sessions is inconsistent with the Privacy Act, which it describes as operating to preclude disclosure of, among other things, the substance of EEO complaints. While acknowledging that its arguments regarding the ADRA and Privacy Act are in disagreement with the Authority's decisions and that of the U.S. Court of Appeals for the District of Columbia reviewing Dover, 316 F.3d 280, Respondent argues that the court missed the point.

The Respondent contends that permitting union representatives to attend the EEO mediation sessions is also prohibited by the Public Health Service Act, specifically 42 U.S.C. §§ 290dd-3 and 290ee-3, which it contends require that records relating to drug and alcohol abuse maintained by the agency be kept strictly confidential. The Respondent states that it cannot predict when an individual might reveal confidential information regarding drug or alcohol abuse and that if such a revelation occurred during a mediation session at which a union representative was present, the confidentiality requirement would be breached. The Respondent makes similar arguments with respect to Executive Order 13145, which protects genetic information; OPM requirements governing the release of documents and records; 29 C.F.R. 1630.14(d)(1) and 5 C.F.R. 339.304, which protect medical information; and 38 U.S.C. § 7332, which protects the confidentiality of certain medical records of patients of the Veterans Health Administration.

Finally, the Respondent argues that the circumstances involved in this case illustrate the "inherent" conflicts of interest that arise in the processing of EEO complaints between unions and the individuals filing them. Respondent's Brief at 55. According to the Respondent, its organization prior to the advent of laws prohibiting discrimination was a predominantly white male organization and the transition to a more diverse workforce was not always harmonious. That transition included several class action law suits filed by female and Hispanic employees some of which produced settlement agreements that the National Federation of Federal Employees objected to. Lastly, the Respondent asserts that EEO complaints can involve conflicts between a complainant and a fellow bargaining unit employee, whom the union might be called upon to represent and that the EEO process must be available to employees without union intervention. [ v60 p663 ]

Analysis

A. The meetings were formal discussions under section 7114(a)(2)(A)

1. Analytical framework applied in formal discussion cases

In recent years the Authority has addressed the question of whether mediation sessions conducted in the context of formal EEO complaints constitute formal discussions under section 7114(a)(2)(A). In addressing the question, the Authority relies on the same analytical framework that it applies generally in formal discussion cases.

That analytical framework is rooted in section 7114(a)(2)(A), which provides that the exclusive representative has the right to be represented at formal discussions. Under section 7114(a)(2)(A), in order for a union to have the right to representation under section 7114(a)(2)(A), there must be: (1) a discussion; (2) which is formal; (3) between a representative of the agency and a unit employee or the employee's representative; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Luke II, 58 FLRA at 531; Dover, 57 FLRA at 306; and Luke I, 54 FLRA at 723. All elements must be satisfied in order for the right to representation to exist.

2. The three meetings at issue constituted discussions

With respect to the first element, it is undisputed, and, therefore, found, that the mediation sessions that are the focus of the consolidated complaint constituted discussions.

3. The three discussions were "formal"

The Respondent contends that any discussions held were not "formal." In order to determine whether meetings constitute "formal" discussions, the totality of the circumstances must be examined. The Authority has identified the following illustrative factors for consideration: (1) the status of the individual who held the discussions; (2) whether any other management representatives attended; (3) the site of the discussions; (4) how the meetings for the discussions were called; (5) the length of the discussions; (6) whether a formal agenda was established; and (7) the manner in which the discussions were conducted. E.g., Luke II, 58 FLRA at 532.

The fact patterns relating to the discussions involved in this case are similar to those involved in Luke II, Dover, and Luke I, which were sufficient to support a finding that meetings held for the purpose of mediating EEO complaints were formal in nature. [n14]

In Luke II, the Authority relied on the following facts to find that such a discussion was "formal." The meeting had a planned agenda, that is, to mediate and resolve an EEO complaint; the meeting was held in a location away from the employee's work site; the attendees included a commander with authority to sign a settlement agreement on behalf of the respondent; the meeting followed the traditional mediation format of joint meetings and individual caucuses; and the meeting was scheduled well in advance. 58 FLRA at 532.

In Dover, the Authority relied on the following factors to find that a meeting held to mediate an EEO complaint was formal. The meeting was scheduled more than a week in advance; the established purpose of the meeting was to mediate and resolve an EEO complaint; attendees were provided with information concerning the mediation in advance of the meeting; the meeting was held at a location away from the employee's work site; attendees included an agency representative, who was not the employee's supervisor, and a facilitator who attempted to resolve the EEO complaint; the meeting followed a traditional mediation format; and the attendees signed a confidentiality agreement in advance of the meeting. 57 FLRA at 307.

In Luke I, the Authority cited the following factors as supporting a conclusion that a mediation/investigation session relating to an EEO complaint was formal. Management was represented at the meeting by an attorney who came from a higher level of management; the meeting took place outside the employee's work area; the meeting lasted 3 hours and had a pre-established agenda, specifically a memorandum sent in advance that defined the objectives and procedures planned for the meeting; and attendance was, in effect, mandatory. 54 FLRA at 724-28.

In this case, the meeting conducted to mediate Patrick Crespin's EEO complaint bore the following relevant characteristics. Management was represented by an official who was the highest ranking in the Sierra National Forest, who by definition was delegated full authority to settle the EEO complaint, and who had no supervisory authority over Crespin. Also present was Gene Rose, an employee relations specialist, whom the parties stipulated was a Regional Office technical representative. [ v60 p664 ] Participants were notified of the meeting over two weeks in advance. The meeting took place in a location away from Crespin's work area and lasted a majority of the day. The pre-established subject of the meeting was the resolution of Crespin's EEO complaint and, hence, the meeting had an agenda. Although the parties do not stipulate as to the format of the meeting, it is clear that it was essentially a mediation session and no doubt consisted of joint and/or separate discussions between the parties assisted by a mediator. The parties stipulated that attendance was voluntary. Although no minutes of the meeting were kept, the parties did sign an "EIP Outcome Form" that summarized the result of the meeting.

Viewed in their totality, the facts relating to the Crespin mediation session are sufficiently parallel to those presented in Luke II, Dover, and Luke I to warrant the same finding reached in those cases as to the formality of the discussion. Based on the totality of the facts, I find that the meeting relating to Patrick Crespin's EEO complaint was formal. In reaching this finding, I reject the Respondent's argument that because the mediator was conducting the meeting it was not formal. The fact that the mediation sessions in previous cases were led by a mediator did not result in the Authority finding that the meeting was not formal. See Luke II; Dover. Additionally, I reject the Respondent's argument that because attendance at the meeting was voluntary, it was not formal. In this regard, the Authority previously has found that the voluntary nature of a meeting does not undermine its formality when other indicia support such a finding. See Luke II, 58 FLRA at 533; Dover, 57 FLRA at 307. Nor does the fact that the manager present was not in Crespin's chain of command render the meeting other than formal. See Dover, 57 FLRA at 307.

Respondent's argument that the meeting was not formal within the meaning of section 7114(a)(2)(A) because Crespin's formal EEO complaint had not been accepted by the Department of Agriculture prior to the date on which the meeting was held is also rejected. Respondent contends that the Authority follows the approach adopted by the Ninth Circuit in IRS, Fresno, that it characterizes as holding that meetings held at the informal stage of the EEO complaint process are not formal discussions under section 7114(a)(2)(A). In IRS, Fresno, the Ninth Circuit held that by the terms of the applicable EEOC regulation, an EEO "precomplaint conciliation conference" was "informal." 706 F.2d at 1023-24.

It appears, however, that the Authority does not agree with, among others, that particular aspect of the Ninth Circuit's decision in IRS, Fresno. Specifically, in Luke I, the Authority stated that it rejected a respondent's reliance on IRS, Fresno, to support its position that meetings may be found informal when the "regulatory framework" of the EEOC characterizes them that way. 54 FLRA at 729.

Even assuming that the Authority were to follow the Ninth Circuit's approach and determine formality based on the point within the EEO complaints process that a meeting occurs, I find that Crespin's EEO dispute had developed into a formal EEO complaint prior to the time of the meeting at issue in this case. EEOC is responsible for issuing regulations and directives that govern the processing of EEO complaints in the Federal sector. EEOC's regulations concerning EEO in the Federal sector are set forth at 29 C.F.R. Part 1614. EEOC has also issued a complaints processing manual for the Federal sector--Equal Employment Opportunity Management Directive, EEO MD-110 (EEO MD-110).

Under the procedures prescribed by EEOC for addressing EEO complaints in the Federal sector, an aggrieved person must engage in a pre-complaint process that consists of consulting with an EEO counselor as a prerequisite to filing a complaint of discrimination. See 29 C.F.R. § 1614.105. Within specified time frames and, presumably, at the completion of counseling, the counselor must provide the aggrieved, among other things, with written notice of the aggrieved's right to file a discrimination complaint. See 29 C.F.R. § 1614.105(d). EEOC characterizes this in other terms as the counselor informing the aggrieved that he/she has the right to pursue the claim further "through the formal complaint procedure." See EEO MD-110, Chapter (Ch.) 2, § VI.D.1. Upon receipt of that notice, the aggrieved may file a complaint with the agency that allegedly discriminated against him or her within 15 days of receipt of the written notice of right to file. 29 C.F.R. § 1614.106. EEO MD-110 provides that if the complaint is mailed, the date of filing is the postmark date. [n15] EEO MD-110, Ch. 5, § I. Within a reasonable time after a complaint is filed, the agency must [ v60 p665 ] notify the complainant whether and to what extent it is accepting or dismissing the complaint. [n16] Id.

Under the process set forth by EEOC, Crespin's formal EEO complaint in CRO-10797 was filed as of September 13, 2001, the date it was mailed to the Department of Agriculture. I reject the Respondent's contention that the EEO complaint was not formal at the time the mediation session occurred because the Department of Agriculture had not yet accepted it. Under the process set forth by EEOC, which is described above, the acceptance of an EEO complaint follows the filing of a formal complaint and status as a formal EEO complaint is not dependent on the agency's acceptance.

Turning to the meeting that related to Cyndie Genzmer's EEO complaint, I find that it, too, was formal. The following characteristics support that finding. The meeting was attended by the Regional Engineer of Region 5 of the Forest Service who was designated as resolving official and, hence, by definition, had full authority to settle the EEO complaint on behalf of the agency. The Regional Engineer did not have any supervisory authority over Genzmer. Gene Rose, the Region's employee relations specialist and technical representative, was also present. Participants were notified of the meeting as well as the date, time and place approximately 3 weeks in advance. The meeting took place in a location away from Genzmer's work area and took a total of approximately 5 hours, not counting a lunch break. The meeting had an agenda in that the pre-established subject of the meeting was the resolution of Genzmer's EEO complaints. The meeting involved full discussion of Genzmer's EEO complaints and offers of settlement.

As was the case with the Crespin matter discussed immediately above, the circumstances involved in the meeting relating to Genzmer's EEO complaints are sufficiently similar to those in Luke II, Dover and Luke I to warrant a finding that it, too, was formal. [n17]

I reject Respondent's argument that the meeting was not formal because Genzmer's formal EEO complaints had not been accepted by the Department of Agriculture prior to the date on which the meeting that is the subject of the ULP in this case was held. The same considerations that I discussed in conjunction with the same argument made with respect to Crespin's situation apply to that of Genzmer. With respect to the specifics involved in Genzmer's EEO complaint, she mailed a formal complaint to the Department of Agriculture in Case No. CRO-20185 on October 4, 2001, and in Case No. CRO-20301 on January 6, 2002. Thus, both formal complaints were filed prior to the March 8, 2002, mediation session. Hence, the complaints had developed into formal EEO complaints prior to the mediation session.

I find that the mediation session conducted in conjunction with Jannet Benton's EEO complaint also was formal. The meeting was attended by the Lake Tahoe Basin Management Unit Supervisor, who was designated as resolving official and, hence, had full authority to settle the EEO complaint on behalf of the agency. The Lake Tahoe Basin Management Unit Supervisor was the highest ranking official in the Lake Tahoe National Forest and did not have any supervisory authority over Benton. Also present was Gary Gilbert, the agency technical representative. Participants were notified of the meeting almost 2 weeks in advance. The meeting took place in a location away from Benton's work area and lasted approximately 8 hours. The meeting had an agenda in that the pre-established subject of the meeting was the resolution of Benton's EEO complaints. The meeting involved full discussion of Benton's EEO complaints and offers of settlement. Attendance was voluntary. Notes that were taken during the meeting were destroyed at the end and no minutes of the meeting were kept.

The circumstances involved in this third meeting are sufficiently similar to those involved in Luke II, Dover, and Luke I, to warrant a finding that it, too, was formal. [n18]

4. The discussions were between a representative of the agency and a unit employee

It is undisputed, and I find, that the three discussions that are the focus of the consolidated complaints were between a representative of the agency and a unit employee. [ v60 p666 ]

5. The discussions concerned grievances

In determining whether a matter constitutes a grievance under section 7114(a)(2)(A), the Authority applies the definition of grievance that is set forth in section 7103(a)(9) of the Statute. See, e.g., Dover, 57 FLRA at 308. Under that section, grievance is defined, in relevant part, as:

any complaint-

(A) by any employee concerning any matter relating to the employment of the employee[.]

The Authority has construed this definition of grievance broadly as encompassing any employment-related complaint, regardless of the forum in which the complaint may be pursued, and as including EEO complaints. See, e.g., Dover, 57 FLRA at 308. The Authority has also stated that the statutory definition of grievance is not dependent on the scope of a negotiated grievance procedure. See, e.g., Luke II, 58 FLRA at 534. This last principle applies whether EEO claims are excluded from coverage under a negotiated grievance procedure, see, e.g., id., or included within the coverage of a negotiated grievance procedure, see Marine Corps Logistics Base, Barstow, California, 52 FLRA 1039, 1047 (1997).

Applying the definition contained in section 7103(a)(9) and consistent with the Authority's findings in other cases, the EEO complaints that were the subject of the three meetings at issue in this case, constituted grievances. [n19] As discussed earlier, I find with respect to Crespin and Genzmer that their EEO disputes had developed into formal complaints by the time the discussions occurred. Accordingly, it is not necessary to determine whether an EEO dispute that is at the pre-complaint or counseling stage constitutes a grievance within the meaning of section 7114(a)(2)(A).

B. There is no basis for finding that presence of a Union representative at the meetings would conflict with ADRA, Privacy Act, EEOC regulations and other laws and regulations identified by the Respondent

In Luke II, Dover, and Luke I, the Authority concluded that the presence of a union representative at mediation sessions similar to those involved in this case was not inconsistent with either the ADRA or EEOC regulations. Consistent with those decisions, I reach the same conclusion here. I find that the facts presented fail to show a direct conflict between the Union's institutional rights under section 7114(a)(2)(A) and the employee's rights to confidentiality in EEO proceedings. The Respondent's arguments to the effect that such conflict exists are, like those rejected by the Authority in Luke II and Dover, hypothetical in nature.

In Luke II, Dover, and Luke I, the Authority also rejected arguments similar to those the Respondent presents here with respect to conflict between allowing a union representative at the meetings and the Privacy Act. In Luke II, the Authority adhered to previous Authority precedent and the view of the U.S. Court of Appeals for the District of Columbia Circuit that the Privacy Act entails an "actual retrieval" standard. 58 FLRA at 535-36. Consistent with that standard, the Authority found that there was no demonstration that the union's acquisition of knowledge of the issues raised in an EEO complaint as a result of attendance at a mediation session would be related to the actual retrieval of information from a "record" within the meaning of the Privacy Act. Id. As with Luke II, I find that there is no evidence demonstrating that any knowledge of sensitive information obtained as a result of the Union's presence at the three mediation sessions would have been related to the actual retrieval of such information from a "record" within the meaning of the Privacy Act. Therefore, I reject the Respondent's argument in this case that allowing a Union representative to be present at the three mediation sessions involved, herein, would violate the Privacy Act. See 58 FLRA at 535-36.

The Respondent's claims that allowing the Union to be represented at the three mediation sessions would have conflicted with several other laws and regulations that it contends protect individual's confidentiality are also highly similar to those rejected by the Authority in Luke II as hypothetical. In addressing similar claims in Luke II, the Authority stated:

"[T]he Union's statutory right to be represented at such [mediation and settlement discussions] cannot be nullified on the speculative grounds of [ v60 p667 ] potential privacy problems under the Privacy Act." [Citation omitted.] Rather, such hypothetical issues are more appropriately addressed in an actual case when squarely presented.
[Citation omitted.]

58 FLRA at 536.

Similar to the situation in Luke II, the Respondent presents no evidence in this case that any of the meetings involved any information or records that the laws and regulations that are cited by Respondent protect from disclosure. Accordingly, the Respondent's claims that the various laws and regulations that it cites present a basis for finding that the Union did not have a right to be present at the three mediation sessions, is rejected.

C. The Respondent's claims regarding "inherent" conflict do not present a basis for finding that the requirements of section 7114(a)(2)(A) do not apply to the mediation sessions at issue in this case.

If the Respondent's argument that there is an inherent conflict in union attendance at meetings held in the context of the EEO complaint process, otherwise formal discussions that occur in the context of the EEO complaint process would, as a matter of course, be excluded from the requirements of section 7114(a)(2)(A). This, however, is not the path that the Authority has chosen to follow as demonstrated by Luke II and Dover. Rather than adopting an approach that an intrinsic conflict exists that warrants excluding meetings conducted in the context of the EEO complaints process from the requirements of section 7114(a)(2)(A), the Authority has adopted a more restrained approach to resolving conflicts between the EEO process and section 7114(a)(2)(A). The Authority expressly recognizes that in applying section 7114(a)(2)(A) "an appropriate resolution is required in the event of a direct conflict between individual and institutional rights." Luke II, 58 FLRA at 535, quoting Dover. Consistent with that recognition, the Authority determines whether a "direct" conflict has been shown between the union's presence at meetings conducted in the context of EEO complaint processing and the rights of the complainant. See, e.g., Luke II, 58 FLRA at 734-35. Accordingly, I reject the Respondent's assertion that based on "inherent" conflict, the Union had no right to be present at the three mediation sessions.

Conclusion

I find that the three mediation sessions constituted formal discussions within the meaning of section 7114(a)(2)(A) and that the Union had the right to be represented at them. It is, therefore, concluded that by holding formal discussions without affording the Union an opportunity to be represented as required by section 7114(a)(2)(A), the Respondent violated section 7116(a)(1) and (8) of the Statute.

Based on all of the above, it is recommended that the Authority adopt the following Order:

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California, shall:

1. Cease and desist from:

(a) Failing or refusing to provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practice or other general condition of employment, including meetings to mediate settlement of formal Equal Employment Opportunity complaints filed by bargaining unit employees.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal Equal Employment Opportunity complaints.

(b) Post at all facilities of the Department of Agriculture, Forest Service, Los Padres National Forest, where bargaining-unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Los Padres National Forest Supervisor, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that [ v60 p668 ] such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, 901 Market Street, Suite 220, San Francisco, California, 94103-1791, in writing, within 30 days of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, March 25, 2004.

______

ELI NASH

Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Agriculture, Forest Service, Los Padres National Forest, Goleta, California, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning any grievance or any personnel policy or practice or other general condition of employment, including meetings to mediate settlement of formal Equal Employment Opportunity complaints filed by bargaining unit employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL provide the National Federation of Federal Employees, Local 2023, AFL-CIO, advance notice and the opportunity to be represented at formal discussions with bargaining unit employees concerning mediation of formal Equal Employment Opportunity complaints.

_____

(Respondent/Activity)

Date: ___ By: _______

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103-1791, and whose telephone number is: 415-356-5000.

File 1: Authority's Decision in 60 FLRA No. 128

File 2: ALJ's Decision

Footnote # 1 for
60
FLRA No. 128

• ALJ's Decision

The parties' stipulation does not make clear whether the term "agency" used in this particular stipulation refers to the Los Padres National Forest, its parent organization--the Forest Service, or both.

Footnote # 2 for
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FLRA No. 128

• ALJ's Decision

As described in the court's order, the settlement agreement provided, among others: (1) a variety of affirmative injunctive relief measures all designed to address the fundamental class problem of sexual harassment and retaliation for EEO activity; (2) a monitoring body with independent oversight authority for three years; (3) a special EEO complaint process for complaints which were time barred, dating back to February 1, 1994; and (4) a dispute resolution process for disagreements over implementing the settlement agreement. (Exhibit 13 at 7) The affirmative injunctive relief measures encompassed by (1) included, among others, an Early Intervention Program (EIP) to resolve conflicts over sexual harassment issues and an informal EEO resolution process. Id. at n.1.

Footnote # 3 for
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FLRA No. 128

• ALJ's Decision

In the Department of Agriculture's "EEO Complaint Processing Procedures," DM 4300-001, the term "Resolving Official" is defined as: "The Agency Official designated to represent the agency at an ADR session, and who has been delegated full authority to settle the EEO complaint, including execution of a binding settlement agreement." (Exhibit 9 at 4)

Footnote # 4 for
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FLRA No. 128

• ALJ's Decision

The Mediation Confirmation provided the time, date and place of the mediation and discussed the mediation process. (Exhibit 19) Although the stipulation does not further identify Maxie Hamilton, the Mediation Confirmation that Hamilton signed was on the letterhead of the Forest Service, Pacific Southwest Region, Regional Office in Vallejo, California. Id.

Footnote # 5 for
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FLRA No. 128

• ALJ's Decision

The stipulation uses the term "parties" in characterizing the participants in the mediation/settlement meeting. From its context, it is clear that the stipulation uses that term in this particular instance to refer to parties involved in the EEO case as contrasted with the parties to the consolidated unfair labor practice complaint that is the subject of this decision.

Footnote # 6 for
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FLRA No. 128

• ALJ's Decision

According to its terms, the settlement agreement resolved Complaint No. CRO-00472 as well as Crespin's informal complaint filed on May 21, 2001. (Exhibit 21)

Footnote # 7 for
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FLRA No. 128

• ALJ's Decision

This form identified the outcome of the mediation and some procedural matters relating to the settlement. (Exhibit 22)

Footnote # 8 for
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FLRA No. 128

• ALJ's Decision

According to that memorandum, the Respondent was of the view that there was no impact from the implementation of the settlement agreement. (Exhibit 23) The Respondent did, however, agree that the Union could be actively involved in meetings of the staff affected by the EEO settlement agreement that were for the purpose of mapping out work and developing an overall framework for staff operations.

Footnote # 9 for
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FLRA No. 128

• ALJ's Decision

Notes from the meeting indicate that the issue of Genzmer's promotion potential was discussed at this meeting. (Exhibit 24) According to those notes, the participants also discussed a previous statement allegedly made by the Santa Barbara District Ranger to Genzmer to the effect that the former planned to fill a particular vacant position through reinstatement rather than through competition. Id. at 2.

Footnote # 10 for
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FLRA No. 128

• ALJ's Decision

The issue cited in the grievance as a violation of the collective bargaining agreement was the hiring of an individual for the Customer Service position in the Santa Barbara Ranger District. (Exhibit 26) It appears from the grievance that the Union objected to the use of a process that it referred to as "CTAP" rather than advertising the position internally prior to filling from any appropriate source. Id.

Footnote # 11 for
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FLRA No. 128

• ALJ's Decision

The response asserted that because the individual selected for the position ultimately declined, the grievance was null and void. (Exhibit 27) The Respondent agreed (1) to issue a letter to all management officials and employees requiring adherence to the merit promotion article of the collective bargaining agreement and (2) that the position would be advertised. Id.

Footnote # 12 for
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FLRA No. 128

• ALJ's Decision

The stipulation does not identify who the "agency" is. In Exhibit 30, which contains the heading:

Agency is identified as "FS." Thus, it appears that the "agency" to which this particular stipulation refers is the Forest Service.

Footnote # 13 for
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FLRA No. 128

• ALJ's Decision

The Agreement to Mediate was under the heading of "USDA Forest Service Pacific Southwest Region Early Intervention Program and Alternative Dispute Resolution Process." (Exhibit 33) Among other things, the Agreement to Mediate provided that participation in the process was voluntary and specified various measures to safeguard the confidentiality of the process.

Footnote # 14 for
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FLRA No. 128

• ALJ's Decision

Chairman Cabaniss dissented in both Luke II and Dover and did not join in the majority's conclusion that the union had a right under section 7114(a)(2)(A) to be represented at the meetings involved.

Footnote # 15 for
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FLRA No. 128

• ALJ's Decision

In relevant part, EEO MD-110, Ch. 5, § I provides as follows:

I. AGENCY SHALL ACKNOWLEDGE FORMAL

COMPLAINT

Immediately upon receipt of a formal complaint of discrimination, the agency shall acknowledge receipt of the complaint in writing. The acknowledgment letter shall inform the complainant of the date on which the complaint was filed. If the complaint is mailed, the date of filing is the postmark date, not the date the agency received the complaint.

Footnote # 16 for
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FLRA No. 128

• ALJ's Decision

EEO MD-110, Ch. 5, § I provides:

Within a reasonable time after receipt of the [EEO counselor's report], the agency should send the complainant a second letter (commonly referred to as an "acceptance" letter), stating the claim(s) asserted and to be investigated. If the second letter's statement of the claim(s) asserted and claim(s) to be investigated differs, the letter further shall explain the reasons for the difference, including whether the agency is dismissing a portion of the complaint.

Footnote # 17 for
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FLRA No. 128

• ALJ's Decision

The facts that attendance was voluntary; notes taken during the meeting were destroyed at the end; and no minutes of the meeting were kept do not outweigh the other factors indicating formality.

Footnote # 18 for
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FLRA No. 128

• ALJ's Decision

I am unpersuaded by the Respondent's argument that the Benton meeting was not a "formal" discussion because, among others, it addressed an EEO complaint filed pursuant to the terms of the settlement agreement reached in the class action suit, Donnelly v. Glickman. Section 21 of that settlement agreement authorized class members to file EEO complaints that would otherwise be time barred. See Exhibit 11 at 27; Exhibit 13 at 7. Other than a bare assertion, the Respondent does not offer any support as to why the fact that one of the EEO complaints discussed at the meeting was filed under a "special" complaint process undermines the formality of the meeting. I see no basis for finding that the origin of one of the complaints discussed at the meeting offsets the indicia that indicate the meeting was formal in nature.

Footnote # 19 for
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FLRA No. 128

• ALJ's Decision

With respect to the Respondent's exhortation that the FLRA should adopt the approach of the Ninth Circuit as embodied in IRS, Fresno, I note that the FLRA has specifically declined to do so and respectfully disagrees with the Ninth Circuit's determination that the formal discussion right does not apply to EEO complaints. See Luke II, 58 FLRA at 533.